Given that many marketers will probably (depending upon whether or not you think it’s worth it) be about to launch (or have already launched) a campaign around the Diamond Jubilee over the course of the next couple of weeks, it seems like a good time to set out what the rules are around doing so. As much we may all like to think that the event’s relatively “fair game”, the Department for Culture Media & Sport and Lord Chamberlain’s Office (“LCO”) have issued specific guidance on the point – this post is meant to give you some background on the general law around using “royal elements” in campaigns as well as an overview on the specifics for this particular event.
You may have heard that the Lord Chamberlain’s Office (“LCO”) has relaxed the rules around the use of Royal Symbols and emblems and he has, but only for souvenirs and community events. The basic position is that the rules concerning the Royal Family and advertising have NOT been relaxed. They’re set out below.
It’s unlikely that you’ll be pursued for any kind of Trade Mark Infringement in respect of a Jubilee campaign, although there are quite a few Trade Marks registered in respect of “Diamond Jubilee”. If you did face a claim, whoever threatened to sue you would probably have to show confusion in the minds of the public as well as that you’d taken unfair advantage of the Mark in question. For similar reasons, you probably wouldn’t face a passing-off claim – it’s harder to prove than a Trade Mark Infringement claim in any event and you’d need to be shown to be confusing the public or implying that you were endorsed by the Royal Family.
The bigger risk here comes from the fact that it’s a criminal offence (punishable by a fine) for a person to use, without the consent of Her Majesty or a member of the Royal Family, Royal insignia or titles in connection with any business so as to lead to the belief that that person is authorised to do so, or is employed by, or supplies goods or services to, the Royal Family (section 99 Trade Marks Act 1994). If you did face prosecution over a campaign, it’d probably either be for this or some of the more specific regulations set out below.
If you use any footage, logos or photographs taken from third party sources, you’ll need a copyright licence to do so – otherwise you’ll be infringing.
Advertising Standards Authority
The CAP Code Copy Advice service has put out some guidance on advertising around the Jubilee. The basic position is that any advertising campaign shouldn’t claim or imply that a product is endorsed by the Royal Family or affiliated with a Royal Event if it isn’t.
Rule 6.1 of the CAP Code prohibits any portrayal or reference to anyone in an adverse or offensive way without their written permission – this includes any implication of personal approval or endorsement, and counts for the Queen as much as anyone else.
Rule 6.2 says that the Royal Family should not normally be shown in an advertisement or other marketing communication without permission, even if incidental references are acceptable.
Rule 3.52 prohibits use of the Royal Arms or emblems without prior permission from the LCO.
The ASA have previously upheld complaints and adjudicated against businesses over suggestions of a Royal Endorsement. The risk is that “Royal Enthusiasts” will complain more than anyone else. The ASA has various sanctions open to it, including a reference to OFCOM (in the case of TV Adverts) issuing Ad Alerts to its members and the media, adjudicating against you (leading to bad publicity) and potentially withdrawal of your content from search engines. In more serious cases, you could also be referred to the OFT for action under the Consumer Protection from Unfair Trading Regulations 2008 (see below).
Trade Descriptions Act 1968 & Consumer Protection From Unfair Trading Regulations 2008
Most of the 1968 Act was repealed by the 2008 regulations, however there are some sections left which provide the Royal Family with specific legal protection:
Section 12 says that it is an offence to give by whatever means, in the course of any trade or business, any false indication that goods or services are of a kind supplied to or approved of by any member of the Royal Family. It’s also an offence to use any device or emblem signifying the Queen’s Award to Industry or anything “deceptively similar to” or resembling it.
To be guilty of the offence, you’d need to be involved in an “unfair commercial practice”. This is defined as “any commercial communication by a trader connected with the promotion, sale, or supply of a product to consumers in a way which is misleading, aggressive” or blacklisted.
This offence is punishable by a maximum of 2 years in prison or a potentially unlimited fine, and alone gives good reasons from staying as far away as you can from the wrong side of using of references to the Jubilee.
Lord Chamberlain’s Office Guidance
The phrase “Diamond Jubilee” and “Queen’s Diamond Jubilee” can be used for non-commercial purposes if permission is applied for. The LCO has indicated that “illegitimate use” of the name will be referred to Action Fraud, although this will probably only be in serious cases.
What can you use?
You should probably stay away from the following words and phrases:
• Diamond Jubilee
• Queen Elizabeth II Diamond Jubilee
• Queen’s Diamond Jubilee
• Queen Elizabeth II
• Her Majesty
The ASA and LCO have said that references to “Parties” or “60 Ways To Celebrate….” are fine. “Diamond” is probably also OK in certain contexts. If you have a particular campaign in mind, you can try and get it cleared by the ASA in advance.
So in summary, it’s actually pretty tough to advertise around the Jubilee (if you’re a thick Lawyer rather than a gifted Marketer) and stay on the right side of the law. Many I spoke to actually weren’t even aware that there were laws around the area. Consider your day well and truly ruined. Still, at least you hopefully won’t be prosecuted….
UPDATE – Having looked into this a bit further with the ASA, use of the word “Jubilee” should be ok in respect of the CAP Codes, but having spent most of the day arguing about it with fellow Lawyers (typical), Marketers and three different people at the LCO – even use of the word “Jubilee” in isolation may fall foul of the other legislation. An invitation to “Celebrate the Jubilee” with us as part of the marketing mix might be OK, but it’s certainly not something you can base a campaign on.
Special thanks to my good friend and trusted adviser Melanie McGuirk at Pannone for her help with this. You can (and should) look her up at: http://firstname.lastname@example.org